EXHIBIT 10.34
[CONFORMED COPY]
FORBEARANCE AGREEMENT
FORBEARANCE AGREEMENT dated as of November 14, 2001 with respect to the
Credit Agreement dated July 23, 1999 (as amended, the "CREDIT AGREEMENT") among
Lodgian Financing Corp. (the "BORROWER"), Lodgian, Inc. (the "PARENT"), Impac
Hotel Group LLC, Servico, Inc., the affiliate Guarantors party thereto, the
Lenders party thereto (the "LENDERS"), Morgan Stanley Senior Funding, Inc., as
Administrative Agent (the "ADMINISTRATIVE AGENT"), Collateral Agent, Co-Lead
Arranger, Joint Book Manager and Syndication Agent, Lehman Brothers Inc., as
Co-Lead Arranger and Joint-Book Manager and Lehman Commercial Paper Inc., as
Documentation Agent (collectively with the Administrative Agent, the "AGENTS").
W I T N E S S E T H :
WHEREAS, the Borrower has advised the Agents that it does not believe it
will be in compliance with Sections 5.04(a) and 5.04(d) of the Credit Agreement
at one or more times on or prior to December 31, 2001, thereby resulting in the
case of noncompliance with each such Section in an Event of Default under
Section 6.01(c) of the Credit Agreement (collectively, the "ANYTIME COVENANT
DEFAULTS");
WHEREAS, on October 17, 2001 the Borrower, the Parent, the Lenders and the
Agents executed a Forbearance Agreement (the "OCTOBER FORBEARANCE AGREEMENT")
pursuant to which, and subject to the conditions set forth therein, the Lenders
agreed to temporarily forbear from the exercise of remedies with respect to the
Specified Defaults referred to therein (such Specified Defaults, the "QUARTER
END COVENANT DEFAULTS" and, together with the Anytime Covenant Defaults, the
"DESIGNATED DEFAULTS"); and
WHEREAS, the Agents and the Lenders have agreed to (i) extend the
forbearance agreement contained in the October Forbearance Agreement with
respect to the Quarter End Covenant Defaults and (ii) forbear from exercising
certain default-related remedies against the Borrower or any other Loan Party
under the Loan Documents on account of the Anytime Covenant Defaults, in each
case for a limited period of time and upon the terms and conditions set forth
herein;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Defined Terms; References. Unless otherwise specifically
defined herein, all capitalized terms used but not otherwise defined herein
shall have the meanings set forth in the Credit Agreement.
SECTION 2. Forbearance. (a) The Agents and the Lenders agree that until the
expiration of the Forbearance Period, the Agents and the Lenders will
temporarily forbear from the exercise of their default-related remedies against
the Borrower or any other Loan Party solely to the extent the availability of
such remedies arises exclusively from the Designated Defaults; provided that the
Borrower shall comply during the Forbearance Period with all provisions,
limitations, restrictions or prohibitions that would otherwise be effective or
applicable under any of the Loan Documents during the continuance of any Default
or Event of Default. "FORBEARANCE PERIOD" means the period beginning on the
Effective Date (as defined in Section 10 below) and ending on the earliest to
occur of (any such occurrence being a "TERMINATION EVENT"): (i) December 31,
2001, (ii) the occurrence of any Default other than a Designated Default, (iii)
the commencement by any holder of Debt of the Borrower or any of its
Subsidiaries (or by any indenture trustee or agent therefor), other than (x)
Debt outstanding under the Loan Documents and (y) Debt held by no more than two
entities in an aggregate principal amount not in excess of $500,000, of the
exercise of any remedy or the taking by any such party of any other action in
furtherance of collection or enforcement of any claim or Lien against the
Borrower, any such Subsidiary or any of their respective assets, or (iv) failure
by the Borrower to comply with any of its obligations under this Agreement or
the October Forbearance Agreement. Effective on the Effective Date, this Section
2(a) replaces in its entirety Section 2(a) of the October Forbearance Agreement.
Except as modified pursuant to this Section 2(a) and Section 6 herein, all the
terms of the October Forbearance Agreement (including without limitation the
covenants set forth in Section 5 thereof) remain in full force and effect. (b)
Upon a Termination Event, the agreement of the Agents and the Lenders hereunder
to forbear from exercising their default-related remedies shall immediately
terminate without the requirement of any demand, presentment, protest or notice
of any kind, all of which the Borrower waives. The Borrower agrees that the
Agents and the Lenders may at any time thereafter proceed to exercise any and
all of their respective rights and remedies under any or all of the Loan
Documents and/or applicable law, including, without limitation, their respective
rights and remedies in connection with any or all of the Defaults, including,
without limitation, the Designated Defaults.
(c) Any agreement to extend the Forbearance Period must be set forth in
writing and signed by the Agents and the Required Lenders.
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(d) THE BORROWER ACKNOWLEDGES AND AGREES THAT THE AGREEMENT OF THE AGENTS
AND THE LENDERS HEREUNDER (I) TO FORBEAR FROM EXERCISING THEIR DEFAULT-RELATED
REMEDIES WITH RESPECT TO THE DESIGNATED DEFAULTS AND (II) TO PERMIT THE MAKING
OF THE PERMITTED BORROWING (AS DEFINED BELOW) AND THE ISSUANCE OF THE PERMITTED
LETTERS OF CREDIT (AS DEFINED BELOW), SHALL NOT CONSTITUTE A WAIVER OF SUCH
DESIGNATED DEFAULTS AND THAT THE AGENTS AND THE LENDERS EXPRESSLY RESERVE ALL
RIGHTS AND REMEDIES THAT THE AGENTS AND THE LENDERS NOW OR MAY IN THE FUTURE
HAVE UNDER ANY OR ALL OF THE LOAN DOCUMENTS AND/OR APPLICABLE LAW IN CONNECTION
WITH ALL DEFAULTS AND EVENTS OF DEFAULT (INCLUDING WITHOUT LIMITATION THE
DESIGNATED DEFAULTS).
SECTION 3. Permitted Single Working Capital Borrowing and L/C Rollovers.
Notwithstanding the occurrence and continuation of the Designated Defaults, the
Borrower shall be permitted, subject to the other terms and conditions of the
Credit Agreement and solely upon the effectiveness of this Agreement, (i) to
make one Working Capital Borrowing on November 15, 2001 in an aggregate
principal amount not to exceed $3,000,000 (the "PERMITTED BORROWING") solely for
the purposes of paying interest on outstanding Advances that is due and payable
under Section 2.07(a) of the Credit Agreement on November 15, 2001 and (ii)
solely with respect to Letters of Credit that are outstanding on the Effective
Date, to renew such Letters of Credit on the same terms (including without
limitation amount but excluding expiration date) and to replace any such Letters
of Credit that by their current terms expire with new Letters of Credit having
the same terms (including without limitation amount but excluding expiration
date) and for the same purposes (such new Letters of Credit, together with such
renewed Letters of Credit, the "PERMITTED LETTERS OF CREDIT"). The Company
hereby instructs the Administrative Agent to apply the proceeds of the Permitted
Borrowing to the payment of such interest and notwithstanding anything to the
contrary in Section 6.01(a) of the Credit Agreement, if such interest is not
paid in full on November 15, 2001, such failure shall constitute an immediate
"Event of Default" under the Credit Agreement. Other than the making of the
Permitted Borrowing and the issuance of the Permitted Letters of Credit, the
Borrower shall not have the right to obtain and no Lender shall have any
obligation to make, issue or renew, any Advance or any Letter of Credit or any
other extension of credit under the Credit Agreement or any other Loan Document,
without the prior written consent of the Required Lenders.
SECTION 4. General Release. In consideration of, among other things, the
forbearance provided for herein and the receipt of the proceeds of the Permitted
Borrowing and the issuance of the Permitted Letters of Credit, the Parent and
the Borrower, on behalf of itself and their respective Subsidiaries and its and
their successors and assigns (collectively, "RELEASORS"), hereby forever
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waive, release and discharge to the fullest extent permitted by law any and all
claims (including, without limitation, crossclaims, counterclaims, rights of
set-off and recoupment), causes of action, demands, suits, costs, expenses and
damages (collectively, the "CLAIMS"), that any Releasor now has or hereafter may
have, of whatsoever nature and kind, whether known or unknown, whether now
existing or hereafter arising, whether arising at law or in equity, against any
or all of the Agents and any Lender and their respective affiliates,
shareholders and "controlling persons" (within the meaning of the federal
securities laws), and their respective successors and assigns and each and all
of the officers, directors, employees, agents, attorneys and other
representatives of each of the foregoing (collectively, the "RELEASEES"), based
in whole or in part on facts, whether or not now known, existing on or before
the execution of this Agreement. Acceptance by the Borrower of any Working
Capital Advances or other financial accommodations made by the Agents or any
Lender after the date hereof (including, without limitation, the accommodations
contained in this Agreement) shall constitute a ratification, adoption and
confirmation by Releasors of the foregoing general release of all Claims against
any Releasee which are based in whole or in part on facts, whether or not now
known or unknown, existing on or prior to the date of receipt of any such
Working Capital Advances or other financial accommodations. In entering into
this Agreement, the Borrower has consulted with and been represented by counsel
and expressly disclaims any reliance on any representations, acts or omissions
by any of the Releasees and hereby agrees and acknowledges that the validity and
effectiveness of the release set forth above do not depend in any way on any
such representations, acts and/or omissions or the accuracy, completeness or
validity thereof. The provisions of this Section shall survive the termination
of the Credit Agreement and the other Loan Documents and payment in full of all
amounts owing thereunder.
SECTION 5. Representations and Covenants of Borrower. (a) The Borrower
represents and warrants that (i) the representations and warranties of the Loan
Parties set forth in the Credit Agreement and the other Loan Documents will be
true on and as of the Effective Date (assuming for such purposes that this
Agreement constitutes a Loan Document) and (ii) no Default or Event of Default
will have occurred and be continuing on such date, other than the Designated
Defaults. The Borrower confirms that the Credit Agreement and the other Loan
Documents are in full force and effect.
(b) In addition to the information required to be furnished under the Loan
Documents and the October Forbearance Agreement to the Agent and the Lender
Parties (including without limitation pursuant to Section 5.03 of the Credit
Agreement), the Parent will furnish to the Agent and the Lender Parties, within
two Business Days after the end of each calendar week, a weekly flash
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report with respect to such calendar week in the form agreed to between the
Parent and the Agents.
(c) The covenant set forth in subsection (b) above will terminate on
December 31, 2001. Any agreement to waive compliance with such covenant while
such covenant is in effect must be set forth in writing and signed by the Agents
and the Required Lenders.
SECTION 6. Bi-Weekly Interest Payments. Notwithstanding anything to the
contrary in the Credit Agreement, the Borrower shall pay accrued and unpaid
interest on the unpaid principal amount of each Advance owing to any Lender
under the Credit Agreement on November 15, 2001, November 30, 2001 December 14,
2001 and December 31, 2001, and failure to comply with this Section shall
constitute an "Event of Default" under the Credit Agreement.
SECTION 7. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 8. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument. This Agreement
shall constitute a Loan Document.
SECTION 9. No Third Party Beneficiaries. This Agreement shall be binding
upon and inure to the benefit of the Borrower, the Agents and the Lenders and
their respective successors and assigns. No Person other than the parties hereto
and any other Lender, and, in the case of Section 4 hereof, the Releasees, shall
have any rights hereunder or be entitled to rely on this Agreement, and all
third-party beneficiary rights (other than the rights of the Releasees under
Section 4 hereof and any other Lender) are hereby expressly disclaimed.
SECTION 10. Effectiveness. This Agreement shall become effective on the
date when the following conditions are met (the "EFFECTIVE DATE"):
(a) the Administrative Agent shall have received from each of the
Borrower and the Required Lenders a counterpart hereof signed by such
party or facsimile or other written confirmation (in form satisfactory to
the Agent) that such party has signed a counterpart hereof; and
(b) the Borrower shall have paid all costs and expenses of each
Agent (including legal fees and expenses of counsel to the Agents) that
have been invoiced on or prior to the Effective Date or the Agents shall
have received reasonable assurance from the Borrower that such invoiced
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costs and expenses will be paid within one Business Day of the Effective
Date.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by its officer thereunder duly authorized, as of the
first written above.
LODGIAN FINANCING CORP.
By: /s/ Daniel E. Ellis
---------------------------------------------
Title: Vice President
LODGIAN, INC.
By: /s/ Daniel E. Ellis
---------------------------------------------
Title: Secretary
MORGAN STANLEY SENIORFUNDING, INC.,
as Administrative Agent
By: /s/ Stephen Hannan
---------------------------------------------
Title: Vice President
LEHMAN COMMERCIAL PAPER INC.,
as Documentation Agent
By: /s/ Francis X. Gilhool
---------------------------------------------
Title: Authorized Signatory
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AFFILIATE GUARANTORS AND GRANTORS
SERVICO, INC.
By: /s/ Daniel E. Ellis
---------------------------------------------
Title: Vice President
IMPAC HOTEL GROUP, LLC
By: /s/ Daniel E. Ellis
---------------------------------------------
Title: Vice President
SHEFFIELD MOTEL ENTERPRISES, INC.
DOTHAN HOSPITALITY 3053, INC.
DOTHAN HOSPITALITY 3071, INC.
GADSDEN HOSPITALITY, INC.
LODGIAN ANAHEIM INC.
LODGIAN ONTARIO INC.
SERVICO PENSACOLA, INC.
SERVICO PENSACOLA 7200, INC.
SERVICO PENSACOLA 7330, INC.
SERVICO FT. PIERCE, INC.
SERVICO WEST PALM BEACH, INC.
SERVICO WINTER HAVEN, INC.
ALBANY HOTEL, INC.
SERVICO NORTHWOODS, INC.
BRUNSWICK MOTEL ENTERPRISES, INC.
SERVICO CEDAR RAPIDS, INC.
SERVICO METAIRIE, INC.
SERVICO COLUMBIA, INC.
SERVICO COLESVILLE, INC.
SERVICO MARYLAND, INC.
NH MOTEL ENTERPRISES, INC.
MINNEAPOLIS MOTEL ENTERPRISES, INC.
SERVICO ROSEVILLE, INC.
LODGIAN MOUNT LAUREL, INC.
SERVICO JAMESTOWN, INC.
SERVICO NEW YORK, INC.
SERVICO NIAGARA FALLS, INC.
SERVICO GRAND ISLAND, INC.
FAYETTEVILLE MOTEL ENTERPRISES, INC.
APICO INNS OF GREEN TREE, INC.
APICO HILLS, INC.
SERVICO HILTON HEAD, INC.
SERVICO AUSTIN, INC.
SERVICO MARKET CENTER, INC.
SERVICO HOUSTON, INC.
By: /s/ Daniel E. Ellis
---------------------------------------------
Title: Vice President
AMI OPERATING PARTNERS, L.P.
By: AMIOP Acquisition Corp., it general partner
By: /s/ Daniel E. Ellis
---------------------------------------------
Title: Vice President
SERVICO CENTRE ASSOCIATES, LTD.
By: Palm Beach Motel Enterprises,
its general partner
By: /s/ Daniel E. Ellis
---------------------------------------------
Title: Vice President
LITTLE ROCK LODGING ASSOCIATES I,
LIMITED PARTNERSHIP
By: Lodgian Richmond SPE Inc.
By: /s/ Daniel E. Ellis
---------------------------------------------
Title: Vice President
ATLANTA HILLSBORO LODGING, LLC
LODGIAN RICHMOND L.L.C.
By: /s/ Daniel E. Ellis
---------------------------------------------
Title: Manager
LENDERS:
MORGAN STANLEY SENIOR FUNDING, INC.
By: /s/ Stephen Hannan
---------------------------------------------
Title: Vice President
BLACK DIAMOND CLO 1998-1 LTD.
By: /s/ Alan Corkish
---------------------------------------------
Title: Director
BLACK DIAMOND CLO 2000-1 LTD.
By: /s/ Alan Corkish
---------------------------------------------
Title: Director
BLACK DIAMOND INTERNATIONAL FUNDING, LTD.
By: /s/ Alan Corkish
---------------------------------------------
Title: Director
BLUE SQUARE FUNDING LIMITED SERIES 3
By: Bankers Trust Company
as Trustee
By: /s/ Susan Anderson
---------------------------------------------
Title: Assistant Vice President
ELF FUNDING TRUST I
By: Highland Capital Management, L.P.
as Collateral Manager
By: /s/ Todd Travers
---------------------------------------------
Title: Senior Portfolio Manager
EMERALD ORCHARD LIMITED
By: /s/ Dana Schwalie
---------------------------------------------
Title: Attorney-In-Fact
GLENEAGLES TRADING LLC
By: /s/ Ann E. Morris
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Title: Assistant Vice President
HIGHLAND LEGACY LIMITED
By: Highland Capital Management, L.P.
as Collateral Manager
By: /s/ Todd Travers
---------------------------------------------
Title: Senior Portfolio Manager
KZH HIGHLAND-2 LLC
By: /s/ Susan Lee
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Title: Authorized Agent
KZH STERLING LLC
By: /s/ Susan Lee
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Title: Authorized Agent
LEHMAN BROTHERS
By: /s/ Francis X. Gilhool
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Title: Authorized Signatory
LONG LANE MASTER TRUST IV
By: Fleet National Bank
as Trust Administrator
By: /s/ Kevin Kerns
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Title: Managing Director
ML CBO IV (CAYMAN) LTD.
By: Highland Capital Management, L.P.
as Collateral Manager
By: /s/ Todd Travers
---------------------------------------------
Title: Senior Portfolio Manager
SRV-HIGHLAND, INC.
By: /s/ Ann E. Morris
---------------------------------------------
Title: Assistant Vice President
TRANSAMERICA EQUIPMENT FINANCIAL
SERVICES CORPORATION
By: /s/ Ron Linn
---------------------------------------------
Title: Vice President, Region Credit Manager
CONSENT
Dated as of November 14, 2001
Each of the undersigned as a Loan Party under the Credit Agreement
referred to in the foregoing Forbearance Agreement, hereby consents to such
Forbearance Agreement and hereby confirms and agrees that (a) notwithstanding
the effectiveness of such Forbearance Agreement, each Loan Document to which
such Loan Party is a party is, and shall continue to be, in full force and
effect and is hereby ratified and confirmed in all respects, and (b) the
Collateral Documents to which such Loan Party is a party and all of the
Collateral described therein do, and shall continue to, secure the payment of
all of the Secured Obligations (in each case, as defined therein).
SERVICO, INC.
By: /s/ Daniel E. Ellis
---------------------------------------------
Title: Vice President
IMPAC HOTEL GROUP, LLC
By: /s/ Daniel E. Ellis
---------------------------------------------
Title: Vice President
SHEFFIELD MOTEL ENTERPRISES, INC.
DOTHAN HOSPITALITY 3053, INC.
DOTHAN HOSPITALITY 3071, INC.
GADSDEN HOSPITALITY, INC.
LODGIAN ANAHEIM INC.
LODGIAN ONTARIO INC.
SERVICO PENSACOLA, INC.
SERVICO PENSACOLA 7200, INC.
SERVICO PENSACOLA 7330, INC.
SERVICO FT. PIERCE, INC.
SERVICO WEST PALM BEACH, INC.
SERVICO WINTER HAVEN, INC.
ALBANY HOTEL, INC.
SERVICO NORTHWOODS, INC.
BRUNSWICK MOTEL ENTERPRISES, INC.
SERVICO CEDAR RAPIDS, INC.
SERVICO METAIRIE, INC.
SERVICO COLUMBIA, INC.
SERVICO COLESVILLE, INC.
SERVICO MARYLAND, INC.
NH MOTEL ENTERPRISES, INC.
MINNEAPOLIS MOTEL ENTERPRISES, INC.
SERVICO ROSEVILLE, INC.
LODGIAN MOUNT LAUREL, INC.
SERVICO JAMESTOWN, INC.
SERVICO NEW YORK, INC.
SERVICO NIAGARA FALLS, INC.
SERVICO GRAND ISLAND, INC.
FAYETTEVILLE MOTEL ENTERPRISES, INC.
APICO INNS OF GREEN TREE, INC.
APICO HILLS, INC.
SERVICO HILTON HEAD, INC.
SERVICO AUSTIN, INC.
SERVICO MARKET CENTER, INC.
SERVICO HOUSTON, INC.
By: /s/ Daniel E. Ellis
---------------------------------------------
Title: Vice President
AMI OPERATING PARTNERS, L.P.
By: AMIOP Acquisition Corp., it general partner
By: /s/ Daniel E. Ellis
---------------------------------------------
Title: Vice President
SERVICO CENTRE ASSOCIATES, LTD.
By: Palm Beach Motel Enterprises, its general
partner
By: /s/ Daniel E. Ellis
---------------------------------------------
Title: Vice President
LITTLE ROCK LODGING ASSOCIATES I,
LIMITED PARTNERSHIP
By: Lodgian Richmond SPE Inc.
By: /s/ Daniel E. Ellis
Title: Vice President
ATLANTA HILLSBORO LODGING, LLC
LODGIAN RICHMOND L.L.C.
By: /s/ Daniel E. Ellis
Title: Manager